Harper government asks Supreme Court to rule on legality of Senate reform

Harper government asks Supreme Court to rule on Senate reform

OTTAWA — The fate of Canada’s Senate is to be considered by the country’s top court, which has been asked to rule on how reforms to the upper chamber can be made – and on whether it can be abolished.

The Conservative government Friday said it will send six “reference questions” to the Supreme Court of Canada, marking the first time in more than 30 years that the top court would weigh in on Senate reform.

The questions submitted Friday could clear up whether reforming the Senate requires opening up the Constitution – a thorny process that involves the provinces as well as the federal government.

The six questions sent to the court include asking the justices to rule on: the constitutionality of limiting Senate terms to eight, nine or 10 years, among other options; how to go about consulting the provinces on Senate reform and how to go about electing senators who are currently appointed by the prime minister; whether the federal government can repeal the minimum wealth requirements and property qualifications for senators; and how the country could go about abolishing the Senate.

Depending on how the court rules, the government intends to push the Senate Reform Act through the legislative process.

The opposition New Democrats have advocated for abolishing the Senate — a path Prime Minister Stephen Harper has hinted at in the past.

“This party’s preference is to see a reformed and elected Senate, but the Senate must change. If the Senate cannot be elected, then it should be abolished. Those are the choices,” Harper told the House of Commons in 2007.

The reference to the Supreme Court is a change in tactic for a government that has argued its reforms don’t require amending the Constitution. The reference also delays the passage of the bill by as much as two years — the average length of time it takes the court to come back with an answer to a reference.

On Friday, the opposition parties called the reference a stall tactic.

“That’s interesting since they’ve (the opposition) been stalling it, delaying it for six or seven years,” Harper told reporters in Quebec City.

In asking the Supreme Court of Canada to review the legislation, the government is acquiescing to demands from the opposition Liberals that the top court review any attempts to create an elected Senate.

Observers and Tory senators have suggested provinces would challenge the legislation once passed, with the case eventually landing in the Supreme Court.

Going to the top court now would end what would otherwise be a lengthy legal battle. That battle has already started as the courts in Quebec are preparing to set a hearing date for that province’s challenge to the legislation, arguing that the changes in the Senate Reform Act require a constitutional amendment, and consultation with the provinces.

It would also end questions from senators who oppose the bill.

The act would create a voluntary framework for provinces to elect nominees for the Senate. The elected nominees would be presented to the prime minister, who would still hold final say on who is appointed to the Red Chamber.

The bill would also set a one-term limit of nine years for senators appointed since 2008. Currently, senators serve until the age of 75.

Critics say the government needs to consult with provinces over the changes, arguing that it’s a fundamental change to the Senate that requires an amendment to the Constitution. The government argues it is merely exercising its executive functions, which under the Constitution doesn’t require an amendment

The Senate Reform Act has been stuck on the legislative agenda since it was first introduced in June 2011. It was last debated in February 2012 when opposition MPs discussed the legislation.